Sandbaggers Lose in the End

Reales Investment, LLC v. Johnson, No. E072523 (D4d2 Oct. 5, 2020)

A local rule in Riverside County Superior Court requires a bunch of pretrial disclosures of witnesses and evidence, at the expense of the exclusion of anything that is not disclosed. Plaintiff’s original attorney was relieved before making any of the required disclosures. And its new attorney—who appeared for the first time on the first day of trial—didn’t make them either. After the court denied the new attorney’s oral motion for continuance, it ultimately found that Plaintiff’s evidence would be excluded under the local rule, and on that basis granted a nonsuit for Defendant.

First, there was no error in denying the continuance. Plaintiff’s first attorney was relieved more than three months before trial. It had adequate time to find new counsel, and if more time was required to get them up to speed, such counsel could have filed a proper written motion for a trial continuance. By waiting till the first day of trial to make the substitution and only then seeking an oral continuance, Plaintiff failed to establish good cause. 

So far as failure to comply with the local rule goes, the noncompliance was basically undisputed. Nor did Plaintiff’s late hiring of counsel excuse the failure to make the required disclosures. Moreover, the record also revealed substantial discovery misconduct on Plaintiff’s part, such as giving nonsensical responses and failure to produce any documents or to make any percipient, PMK, or expert witnesses available for depositions. Thus, along with the local rule violation, evidentiary preclusion sanctions would have also been in order.

Affirmed.

For what it’s worth, the discussion of discovery sanctions here is interesting. Relying on the text of certain provisions in the Discovery Act, a bunch of cases say that non-monetary sanctions like issue or evidence preclusion are authorized only if the guilty party violates a court order. See, e.g., New Albertsons, Inc. v. Superior Court, 168 Cal. App. 4th 1403, 1427 (2008). Of course, if an opposing party rolls into trial and starts putting into evidence undisclosed documents or testimony, the prejudiced party might never have gleaned that it needed to file a motion to compel, so there will be no order to violate. Under the federal rules—which include a self-executing duty to supplement responses absent from the Discovery Act—a failure to disclose evidence can lead to automatic preclusion under FRCP 37(e)(1). Which makes a lot of sense, since there’s no surefire way to catch this kind of sandbagging before trial. To the extent this case suggests a similar rule, at least in the pre-trial non-disclosure context, it’s a useful citation to keep in the quiver.

Everybody Deserves a Little Delay

Hamilton v. Orange Cnty. Sheriff’s Dept., No. G051773 (D4d2 Feb. 14, 2017)

Defendant in this case filed a summary judgment motion that would have been timely consistent with the original trial date. But the first hearing it could get was four days after trial was set to start. The court subsequently granted an ex parte to move the trial date back so that the SJ hearing date would be more than thirty days before trial.

Plaintiff noticed up the depositions of the SJ declarants plus a PMQ about six weeks before the SJ opposition was due. Defendant objected and then failed to get back to Plaintiff about dates for the depos for over a month. Just before the SJ opp was due, in lieu of setting the depos immediately, Defendant agreed to stipulate to put off the trial and the SJ hearing for another two months to allow time for the depos to go forward. With approval on the stipulation pending, Plaintiff didn’t file an SJ opposition on the due date. The court then denied the stipulation because of a lack of diligence, and proceeded to grant the unopposed MSJ and enter judgment for Defendant. The court subsequently denied a Code of Civil Procedure § 437(b) motion to set the judgment aside.

When a party is faced with an MSJ and still needs evidence to oppose it, the standard relief is to file a declaration under § 437c(h), laying out what discovery is needed and why more time to get it is merited. But that doesn’t preclude the party from taking the alternate route of seeking a continuance of the hearing, which like any continuance, can be granted on good cause in the sound discretion of the trial court.

Even if § 437c(h) wasn’t met here, the stipulation showed good cause to continue the hearing. Defendant had shined plaintiff on about setting dates for the depos, which had been timely noticed in time to meet the original schedule. Indeed, Defendant had essentially conceded that its scheduling cooperation was less than exemplary when it agreed to the stipulated continuance. So particularly given that the trial court had already continued the case to accommodate Defendant’s inability to get a timely summary judgment hearing, it was unfair and an abuse of discretion for the trial court to deny the stipulated continuance to give Plaintiff time to take the depos needed to oppose.

Reversed.